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Sedano v. Colvin

United States District Court, D. Nebraska

April 23, 2014

SHARON KAY SEDANO, Plaintiff,
v.
CAROLYN W. COLVIN, Acting Commissioner of Social Security, Defendant.

MEMORANDUM AND ORDER ON REVIEW OF THE FINAL DECISION OF THE COMMISSIONER OF SOCIAL SECURITY

LAURIE SMITH CAMP, Chief District Judge.

Sharon Kay Sedano filed a complaint on May 2, 2013, against the Commissioner of the Social Security Administration. (ECF No. 1.) Sedano seeks a review of the Commissioner's decision to deny her application for disability insurance benefits under Title II and Title XVI of the Social Security Act (the Act), 42 U.S.C. ยงยง 401 et seq., 1381 et seq. The defendant has responded to the plaintiff's complaint by filing an answer and a transcript of the administrative record. (See ECF Nos. 10, 11). In addition, pursuant to the order of Judge Joseph F. Bataillon, dated July 9, 2013, (ECF No. 13), each of the parties has submitted briefs in support of her position. (See generally Pl.'s Br., ECF No. 14; Def.'s Br., ECF No. 24, Pl.'s Reply Br., ECF No. 25). After carefully reviewing these materials, I find that the Commissioner's decision must be affirmed.

I. BACKGROUND

Sedano applied for supplemental security income on April 7, 2010, and for disability insurance benefits on August 11, 2011. (See ECF No. 11, Transcript of Social Security Proceedings (hereinafter "Tr.") at 13). Sedano alleged an onset date of January 1, 2010. (Id. at 138). After her application was denied initially and on reconsideration, (id. at 84-87, 88-94) Sedano requested a hearing before an administrative law judge (hereinafter "ALJ"). (Id. at 79). This hearing was conducted on February 14, 2012. (Id. at 29-78). In a decision dated April 30, 2012, the ALJ concluded that Sedano was not entitled to disability insurance benefits. (Id. at 10-28). The Appeals Council of the Social Security Administration denied Sedano's request for review. (Id. at 1-6.) Thus, the ALJ's decision stands as the final decision of the Commissioner, and it is from this decision that Sedano seeks judicial review.

II. SUMMARY OF THE RECORD

Sedano, who was born March 21, 1970, (id. at 142) has an associate's degree in medical assisting. (Id. at 38). She lived with her boyfriend and her two children, ages 16 and 17. (Id. at 36). Sedano had previous work experience as a cleaner in a food processing plant, kitchen aide, personal care technician, and nutrition manager. (Id. at 177). She last worked in October 2011. (Id. at 38).

A. Medical Evidence

Sedano reported that she sustained injuries to her lumbar spine in 2000 and had a discectomy at L4 in 2001. (Id. at 18). Sedano had been diagnosed with degenerative disc disease of the lumbar spine with herniations, status post discectomy, failed back syndrome, and degenerative joint disease of the cervical spine. (Id. at 18-19). She complained of leg pain, stiffness, and numbness, which she said caused her to fall. She also said she experienced periodic paralysis about once a week. (Id. at 46-50, 138).

The records show that Sedano received treatment at a clinic associated with the Webster County Community Hospital. On July 21, 2009, Sedano complained of nerve pain in her arms, chest, and legs. (Id. at 282). She was given a prescription of Neurontin and told to use a warm bath for pain. Kelly Oberlechner, APRN, wrote in Sedano's records, "I think she's just kind of lingering here with symptoms." (Id.).

Sedano also complained at several times of chest pain. On August 25, 2009, she was admitted to the hospital for observation and a cardiac workup. (Id. at 281). The cardiac workup was negative and it was determined she likely had bronchitis. (Id. at 301). She was discharged with medications. (Id. at 302). Sedano again complained of chest pain in January 2010 and was admitted to the hospital with musculoskeletal chest pain, musculoskeletal cervical spine and shoulder pain, and a history of degenerative joint disease. (Id. at 330). It was determined that she had no acute myocardial infarction. Because most of her pain seemed to emanate from the lower posterior cervical spine, an x-ray was taken, but it showed no irregularities. Sedano was seen by a physical therapist and given an exercise program. (Id.). She also received treatment at the Nebraska Heart Institute between 2004 and 2012. (Id. at 611-648).

In February 2010, an examination of Sedano's back indicated it was normal. (Id. at 382). She seemed to have minimal pain with palpation of the back, decreased range of motion, and decreased straight leg raising. She was given medication and referred to a pain clinic. (Id. at 383). On March 4, 2010, Sedano went to the emergency room for sharp pain in the middle of her back, and it was determined that she had pneumonia. (Id. at 352). X-rays on March 22, 2010, showed that Sedano had multilevel disc disease. (Id. at 397). An x-ray of the thoracic spine on April 16, 2010, showed hypertrophic degenerative change. (Id. at 411). An EEG to check for possible seizure activity was normal. (Id. at 412). In July 2010, imaging of the lower back showed "degenerative disease throughout without any focal spot to cause stenosis or sciatica-like pain." (Id. at 441). Sedano received several cervical and lumbar epidural steroid injections for back pain throughout the summer of 2010. (Id. at 404, 437-43).

In November 2010, Sedano was examined by Christopher S. Kent, M.D., a neurosurgeon (Id. at 519). Her chief complaint was low back pain, groin pain, leg pain bilaterally, leg numbness, right thigh numbness, and incontinence. Sedano explained that she had not lost control of her bowel and bladder, but she had no feeling when she urinated. She reported that she had not undergone any physical therapy and had no chiropractic manipulation. She walked with a slow gait but was able to raise herself up out of the chair without using her hands. She was able to walk on her toes and heels, but was unable to do repetitive step ups on the right. (Id.). She had no abnormal reflexes and was negative on straight leg raising. (Id. at 520). She had pain with internal rotation of her hips bilaterally. Kent stated that there were no findings based on an MRI that could explain all of Sedano's complaints and there were no findings on x-ray that would explain the urinary changes. He did not believe any surgical intervention would benefit her. Kent ordered a T-spine MRI to ensure there was no abnormality, EMGs of her lower extremities, and facet injections to help with lower back pain. (Id. at 520).

Sedano was treated for neck and low back pain at a pain management clinic beginning in February 2011. (Id. at 571). She was prescribed medications and a TENS unit. (Id. at 573). In May 2011, her medication regimen was continued because it was successful in controlling her pain. (Id. at 567). In July 2011, Sedano stated that she was doing well on her current medical regimen. (Id. at 562). She rated her pain a 2-3 on a scale of 1-10. (Id.).

In April 2011, Sedano went to the hospital complaining of episodic quadriparesis. (Id. at 555). No objective organic basis was found for her symptoms. Douglas T. Brown, M.D., stated that he did not have anything more to offer diagnostically or therapeutically. He referred Sedano to neuromuscular specialists at the University of Nebraska Medical Center (UNMC) for any possible ideas as to the cause of her very unusual symptoms. (Id. at 555-56).

J. Americo Fernandes, M.D., UNMC, examined Sedano on October 19, 2011. (Id. at 707). He reported that the etiology of her pain was unclear. (Id. at 709). Fernandes examined her again on February 15, 2012, (Id. at 716) and blood tests were unrevealing. (Id. at 718). Sedano had started taking Lyrica and received mild benefit, so Fernandes increased the dosage. He stated that Sedano's history was not typical for periodic paralysis. (Id.).

B. Medical Opinion Evidence

In August 2010, Sedano was examined by Daniel E. Mazour, M.D., for her disability benefits application. (Id. at 450-53). He determined that she had crepitus in both knees and marked spasm and pain along the paravertebral muscles of the low back, upper thoracic, and cervical regions. (Id. at 452). Sedano reported numbness in her right thigh, but she had full range of motion. Mazour's impression was spinal stenosis/degenerative disc disease both in the lumbar and cervical spine, COPD, positive smoker, borderline hypertension, dysthymia, and obesity. (Id.). He stated that some of her problems could be worked with and that she would eventually be a candidate for vocational rehabilitation. Sedano was able to walk, but could not sit for long periods of time. Mazour said Sedano had intermittent neuropathy, primarily on the right side. (Id. at 453).

Arthur Weaver, D.O., a state agency medical consultant, completed a physical residual functional capacity (RFC) assessment in September 2010. (Id. at 458-65). Weaver noted that no particular injury or symptom appeared to be consistent with Sedano's alleged onset date. (Id. at 466). In August 2010, she had reported having back pain for a number of years and there was a remote history of an L4-5 discectomy. Sedano's claim that her legs gave out a couple of times a day at work apparently did not preclude employment as a commercial kitchen aide, and there was no independent confirmation of her claim. (Id.). The records showed that Sedano had been noncompliant with medication. A neurology referral had been made, but there was no indication Sedano followed through with it. She also reported inconsistent information about disabling headaches, at one time denying chronic headaches but also reporting that she had incapacitating headaches. And she reported that, after receiving an injection to her neck, for the first time in three years she did not wake up with a headache. (Id.).

Weaver noted that Sedano said her noncompliance with medication was related to financial limitations, but she had been able to regularly use tobacco. (Id. at 467). Weaver stated that available objective information did not support severe neurological dysfunction. Records indicated that Sedano cared for pets and teenagers. She continued to work regularly, prepared full balanced meals, did dishes and vacuumed. She visited relatives, did laundry, and gardened with assistance. (Id.).

Weaver determined that Sedano could occasionally lift and/or carry 20 pounds and frequently lift and/or carry 10 pounds. (Id. at 459). Sedano could stand and/or walk about six hours in an eight-hour workday and sit about six hours in an eight-hour workday. She had to periodically alternate sitting and standing to relieve pain or discomfort. Weaver stated that Sedano's need for positional change could likely be accommodated by normal work breaks. She was unlimited in her ability to push and/or pull. (Id.). Weaver stated that Sedano had occasional limitations in climbing a ramp or stairs, balancing, stooping, kneeling, crouching, and crawling. (Id. at 460). Sedano had no manipulative, visual, or communicative limitations. (Id. at 461-62). Weaver stated that Sedano should avoid concentrated exposure to vibration and hazards such as machinery and heights. (Id. at 462). Weaver stated that with regular care and when compliant with medication, Sedano was capable of activity listed on the RFC. (Id. at 467).

David Duke, Ph.D., completed a psychological interview of Sedano at the request of Disability Determination Services on September 9, 2010. (Id. at 468-476). At that time, Sedano reported that she was working for the Midlands Area Agency on Aging for four hours a day as the nutrition manager, which involved filling sacks and coolers with food to serve meals to the elderly. (Id. at 472). She reported that since her back injury in 2000, she had constant headaches, backaches, and pain with limited mobility. (Id.). Sedano reported that she was not currently taking antidepressants because she could not afford them. (Id. at 473). She had no history of outpatient counseling or inpatient psychiatric treatment. She described her mood as mostly melancholy with periodic sadness but no episodes of major depression. If she started to get depressed, Sedano said she talked with her fiance and her family and they cheered her up. She denied symptoms of panic disorder or obsessions and compulsions. (Id.). She reported mild worry and anxiety and low levels of energy. (Id. at 474).

Duke stated that Sedano's affect was within normal range and congruent with content. (Id.). He found no restriction of activities of daily living due to mental health. (Id. at 470). There were no difficulties in maintaining social functioning and no recurrent episodes of deterioration when stressed. Duke said Sedano had the ability to sustain concentration and attention needed for task completion, the ability to understand and remember short and simple instructions, the ability to carry out short and simple instructions under ordinary supervision, the ability to relate appropriately to coworkers and supervisors, the ability to adapt to changes in the environment, and the ability to handle her own funds. (Id.). Duke's diagnostic impressions were that Sedano had depressive disorder and anxiety disorder, and her GAF was 53.[1] (Id. at 475). He said her mental health prognosis was fair. She was able to use some coping skill ...


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